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President Donald Trump got his Independence Day wish, signing his Big Beautiful Bill into law. But American gun owners almost received a huge present of their own – “almost” because Senate Parliamentarian Elizabeth MacDonough ruled against it. And the GOP listened. In the House-passed version, silencers, short-barrel rifles, and short-barrel shotguns would have been removed from the National Firearms Act of 1934 (NFA), gutting America’s first nationwide gun control law.
The Second Amendment to the US Constitution guarantees the right to keep and bear arms – even saying such right “shall not be infringed” – still, before one can buy a gun in America, one must jump through some hoops. There’s the ATF Form 4473 and the national background check. If you’re a convicted felon, a fugitive from justice, an illegal alien, have been dishonorably discharged from the military, adjudicated mentally defective, or are an unlawful user of controlled substances, you’re forbidden from owning a firearm. And this is generally not considered an infringement of an allegedly uninfringeable right – despite no part of the Constitution establishing any groups of people excluded from this right.
Rather, would-be owners of these special items must apply for ownership, pay a tax, and be placed on the federal gun registry known as the National Firearms Registration and Transfer Record. Since the enactment of the nation’s first successful gun control law, that tax has been $200. Prior to 2022 or so, approvals for the ATF Form 4 – the application required for an NFA transfer – took an average of 10-14 months. Certainly, though, some people had significantly longer waits.
Now, however, the average wait time is a few days – sometimes just a matter of hours. And, thanks to the Big Beautiful Bill, that tax is now $0. So how does that fall far short of the initial House-passed package, which eliminated short-barreled rifles (SBRs), shotguns (SBSs), and silencers from the NFA? In short, because you must still ask permission, be approved, and then end up on the federal registry.
So what makes an act like this legal, as far as the Constitution is concerned? Well, according to Justice Harlan Fiske Stone and the rest of the majority on the 1937 Supreme Court, it is, in fact, a tax – and that’s what makes it constitutional. Writing for the majority, Stone explained: “In the exercise of its constitutional power to lay taxes, Congress may select the subjects of taxation, choosing some and omitting others.” Furthermore, he argued: “Every tax is in some way regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any less a tax because it has a regulatory effect … and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any less so because the tax is burdensome or tends to restrict or suppress the thing taxed.”
You see, according to the Supreme Court of the United States, the NFA is a tax. Senate Parliamentarian Elizabeth MacDonough, however, must disagree with – or be unaware of – that ruling, as she declared the modern GOP’s attempt to gut the NFA to be in violation of the Byrd Rule, which prohibits any measure from being added to a reconciliation bill that isn’t pertinent to the federal budget. The reconciliation rule allows budget-related bills to be passed through the Senate by a 51-vote majority, without the risk of a filibuster.
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Who’s right – the Supreme Court or the Senate parliamentarian? And what may be done in light of the answer?
The NFA was already being questioned again thanks to more recent Supreme Court decisions, including the DC v. Heller ruling of 2003 and New York State Rifle & Pistol Association, Inc. v. Bruen. Could the Senate parliamentarian’s prohibition of its inclusion in a reconciliation bill as a policy change unrelated to taxes or the budget be grounds for another case against the NFA? And would the Supreme Court of today find the not-a-tax as constitutional as the Court of ’37?
On the other hand, if it is, in fact, a tax, could it not simply be added back to the next reconciliation bill and pushed through with or without the parliamentarian’s approval? As Liberty Nation News recently reported, she only holds as much authority as the majority leader gives her. She is granted no constitutional power – the office was established in 1935. The job isn’t an elected position, but one appointed by the majority leader – a role that sees a new actor every few years.
The late Harry Reid, a Nevada Democrat who served as majority leader at the time, appointed her in 2012. Reid then set the precedent for ignoring her in 2013 when she ruled against his decision to remove the filibuster on the confirmation process for presidential appointees, and he did it anyway. Republicans followed suit in 2017, doing away with filibusters on Supreme Court Justice confirmations. In the relatively brief history of Senate parliamentarians, they have been overruled, fired, replaced, and flat-out ignored – and generally without any significant fallout afterward.
If the GOP tries again the next time a budget reconciliation comes up and isn’t concerned with the opinion of some unelected staffer without any real authority, silencers, SBRs, and SBSs could soon be regulated the same as any other rifle or shotgun. But should the NFA find its way back to the Supreme Court, instead, it could be overturned. Perhaps that’s just a pipe dream, but for gun owners and Second Amendment advocates in general, the potential alone is a reason for hope. In the meantime, approvals for silencers and SBRs are only taking a matter of days or even hours, and the application is now free. That may be far from a true victory in the Big Beautiful Bill – but it’s certainly better than nothing.
Liberty Vault: New York State Rifle & Pistol Association, Inc. v. Bruen
Liberty Vault: District of Columbia v. Heller
Liberty Vault: The Constitution of the United States